If your child destroys school property, your insurance policy may not cover it

A couple wanting having a child may bring up the pros and cons, the arguments for and against, the risks and the unknowables.  What will it mean for their financial needs and goals to add the significant costs of parenthood while reducing the family income?  What will it mean for their parents and grandparents to hold the next generation in their arms and watch them grow?  How will they respond if the child is born with a severe illness or disability?  Will the child care for them in their old age?

Everyone is someone’s child, whether you know them because of their successes or failures, their acheivements or improprieties.  The miracle and nightmare of parenthood is that you can do everything or nothing right, and your child can end up loving you or hating you, making you proud or causing immeasurable sorrow and shame, burning through your money or providing for your in your retirement.  You feel compelled to do everything you can (and there is a lot to do), but ultimately your actions are no more a determination of your child’s conduct as adults and young adults than your parents’ actions were or are a determination of your conduct today.

Kids are, in different ways at every stage of life, like bulls in a china shop.  The question for parents is whether they end up barging, head-down, through the aisles, or moving responsibly on to the next challenge.  For some parents, they think: at least I have insurance.

In the recent case of Durham District School Board v Grodesky (CanLII), a parent was told their insurance wouldn’t cut it when it came to their child’s misconduct.  Here are the facts:

  • In the spring of 2007, Colton James started a fire to the contents of his school’s plastic recycling bins that ultimately lead to damage to the school building. 
  • The school board sued Colton along with his father, Tood James, claiming that Todd failed to act in terms of providing/enforcing a curfew, supervising, disciplining and instilling in Colton a respect for private and public property.
  • Todd tried to get his insurer, ING, to defend the claim against him and to reimburse him for any related costs, but ING denied coverage on the basis of the “exclusion clause” in Todd’ policy.  This is the exclusion clause:

Exclusion Status Section II: We do not insure your claims arising from: (6) Bodily injury or property damage caused by any intentional or criminal act or failure to act by: (a) any person insured by this policy; or (b) any other person at the direction of any person insured by this policy.

In other words, even though Todd had comprehensive homeowner’s insurance that covered any personal liabilities connected to property damage anywhere in the world, his insurance company insisted this one fell outside the line.

The Ontario Superior Court of Justice agreed with the insurance company.  Here is how Justice Gunsolus summarized the law in this area (at least in Ontario):

Where an insured [e.g. Todd] seeks to enforce a duty to defend [e.g. in the lawsuit against his son and him], the onus is on the insured to show that the claim, if proven, falls within the scope of coverage provided by the policy.  Only when this threshold is met, does the onus shift to the insurer [e.g. ING] to show that the claim falls outside the coverage because of an applicable exclusion.  Where it is clear from the pleadings that the claim falls outside of the coverage of the policy, by reason of an exclusion clause, the duty to defend does not arise.

Translating from legalese, this is the idea: based on the language of the policy, Todd would need to first show that if he lost the lawsuit with the school board the resulting liabilities would be covered by the policy.  However, since in this case the lawsuit specifically claimed that Todd’s failure to act led to the property damage (and since that sort of conduct by Todd is outside the scope of the policy because of the exclusion clause), ING does not need to defend him. 

At the end of the day, the court may find that Todd did everything right as a parent in connection with his son’s misconduct, in which case ING would likely return to the fray. 

How educational institutions should respond to the riot

A week after the Stanley Cup game seven loss and the riot that followed, Vancouverites are thinking less about how our boys in blue were thumped by the Bruins and more about how our cityscape was bruised by the rioters.  In terms of our pride as a city, the game pulled the rug out from under us, but the riot flat out beat us senseless, prompting the inevitable soul-searching and finger-pointing that happens when any group is shocked by the depravity of some of its members.

The most interesting thing about the past week (and to think, it’s only been a week) was not the violence itself, the response from the police or city officials or the identities of the rioters.  Far and away, it has been the role of social media and, particularly, how the prevalence of cameras (primarily on cellphones) mixed with the unrestrained ability for anyone to reproduce pictures and videos at little or no cost has produced severe, and often legal, consequences for anyone mixed up in the riot.  (Paradoxically, as Kent-Daniel Glowinsky pointed out in yesterday’s Vancouver Sun, in the age of Facebook often the most damning evidence is offered up by the law-breakers themselves, foolishly unaware that they are signing their own criminal confessions.)

The most prominent example of those that have been crucified by social media is Nathan Kotylak (Globe and Mail), the 17 year-old water polo star from Maple Ridge who was caught on camera during the riot trying to blow up a police car.  Kotylak has apologized profusely.  The implications for him and his family have been dire: they have had to leave their home because of threats, and his father – a surgeon – has had his professional reputation tarnished.  Kotylak is just finished grade 12 at Meadowridge High School, though he did not attend his graduation ceremony (the Province).  He was suspended from Canada’s junior water polo squad and it’s unlikely his school has taken any steps in response.

Another student spotlighted by the media is Camille Cacnio (the Ubyssey), a biology student at the University of British Columbia.  She has not gone to the same extent as Kotylak to publicize her apology and regret (though, arguably, the crime she committed was not as obscene and she may simply have not been as appealing to news agencies), but similar issues will be plaguing her, perhaps even more so because of the racial element in much of the online chatter about her.  UBC officials have said pretty definitely that since the riot did not happen at UBC and there was no material connection to UBC, they will not be getting involved.

Employers (Vancouver Sun) have an important decision to make about how to treat employees involved with the riot.  A person who commits a crime should not necessarily be fired from their job unless there is some significant connection between the crime and the job or unless that sort of thing is covered by their employment agreement.  The decision for education institutions is far more complex: should they take any steps against students who participated in the riot?

There are a couple of factors to consider:

  1. Teenagers vs. Adult.  High schools should approach the riot differently than universities should.  Nowadays, a teenagers caught committing a crime during a highly publicized event will likely be getting it from all sides: their family and friends will probably be furious with them and feel the effects themselves; the riot will probably show whenever their name is googled for the next decade or so (unless they happen to do something even more noteworthy, good or bad);  they will have to explain themselves and apologize at interviews, etc. until they are old enough to have their own kids in high school… the list goes on.  University students will probably go through the same, with even greater concern for their professional opportunities, but the chatter will likely affect teenagers in a more acute way because their identities and self-esteem may be more brittle.  High schools are probably best served by using the riot as an educational opportunity, and they should keep in mind that the reactions (or over-reactions, as the case may be) to a crime can be more damaging than the crime itself.  Of course, if they think it’s appropriate to take disciplinary steps against a student, they should keep in mind the legal implications of doing that.
  2. The Campus Connection.  UBC officials hit the nail on the head by emphasizing that offenders are being pursued, students and non-students alike, and since there appears to be no material campus connection there is nothing that the university itself should do.  Educational institutions are not parents.  A student has many identities, and in this case the fact that a rioter also took classes at a certain school may be incidental to what happened.   Schools and universities are concerned, but it’s not their problem any more than it is the problem of other local institutions and businesses.   Students can get arrested or have criminal records, but as long as it is unrelated to their role as a student there is generally no need for the school to intervene.   The question may get more complex if unique facts are involved, such as if university property located downtown (I am thinking of buildings belonging to UBC or Simon Fraser University) was damaged during the riot by students of those universities or if one student hurt another, and so on.

Teachers or professors rioting is a whole other ballgame, and in that case the factors to consider are more employment-related than anything else.

There are many lessons, legal and otherwise, that we can all take from the riot depending on our roles in society and our connection to the city.  Above all, it’s not only about the law.  What will prevent the next riot from happening, and accomplish the most to address the fallout from this one, will come from our internal sense of community or parental obligations and how they should be applied in these and similar circumstances. 

Anti-abortion activists sue Carleton over arrest

The CBC reported recently that two of the anti-abortion activists arrested at Carleton University in the fall for engaging in an unauthorized protest on campus space have filed a lawsuit against the university.

According to the students’ legal documents (CBC), the students allege that Carleton’s refusal to allow a particular anti-abortion display to be presented in a central area of campus in the first place, and then having them arrested when several students went ahead and set up the display there anyways, amounted to discrimination that caused damage.  The students claim the following against the university:

  1. Carleton broke its own internal policies related to academic freedom.
  2. Carleton broke its fiduciary duties to students to provide an environment for free and open debate.
  3. Carleton had the students wrongfully arrested.
  4. Carleton broke its contract with the students by not protecting their right to free expression on campus.
  5. Carleton infringed many of the students’ rights under the Charter.

The students also named four university administrators as personal, rather than institutional, defendants, claiming they were  negligent in the performance of their duties.

This covers off nearly every possible conventional legal claim a student may bring against their university, namely contract, tort, breach of fiduciary duty, etc.  The only one missing is judicial review, which arises when a student pursued an opportunity to overturn a university decision through internal university bodies.  A claim based on the Charter is relatively novel in this context (see this post on the Pridgen decision).

We will see how far this one goes. 

University of Calgary appeals facebook charter decision

The Globe and Mail reported over the weekend that the University of Calgary has filed an appeal regarding a recent decision (CanLII) of the Alberta Court of Queen’s Bench that found that the university had violated the rights of two students under the Canadian Charter of Rights and Freedoms by punishing them for criticizing a professor on facebook.  For a comprehensive review of the decision, please see here.

In an article by the Toronto Sun, University of Calgary spokesperson James Stevenson said the purpose of the appeal was not to further punish the students but rather:

[to seek] clarity on the extent to which the Charter applies to its own operations and those of other post-secondary institutions in Canada… As such, the reason for filing the notice of appeal goes well beyond the specific individuals involved… Filing the notice to appeal allows the university more time to study the decision, and how it fits with other similar cases currently before the courts in other Canadian jurisdictions.

Jacob Serebin opined in his blog on Macleans OnCampus that at the moment “no one outside Alberta has any idea how the charter applies to their university” and he welcomes an appeal for the sake of clarifying some of the more ambiguous comments of the court regarding the scope of the Charter’s application.  He writes:

That’s why I’d like to see this case go to appeal. When it comes to these sorts of decisions, appeals courts tend to clarify and think about how their ruling will impact similar cases that lower courts will see in the future, not just the one in front of them.

Consider the following comments by the court in the Pridgen decision:

While the hiring and firing of employees by a university is non‑governmental in nature… the disciplining of students and the placement of restrictions on a student’s ability to exercise his or her freedom of expression in the context of pursuing an education at a public post‑secondary institution is altogether different. In order to successfully attend the University, students are compelled to adhere to its rules and policies. The regulation of freedom of expression as a condition of attendance cannot be properly classified as day‑to‑day operations [i.e. it is more likely to be governmental in nature].

…The Charter does apply in respect of the disciplinary proceedings taken by the University against the Applicants pursuant to the PSL Act…. [The] source of the alleged Charter violation is the conduct of the University as opposed to the legislation itself. While the University is free to construct policies dealing with student behavior which may ultimately impact access to the post-secondary system, the manner in which those policies are interpreted and applied must not offend the rights provided under the Charter.

These comments appear to draw lines in the sand around what spheres of university conduct are subject to the Charter.  Treatment of employees: no.  Disciplinary measures imposed because of student conduct: yes.  But some further clarification would be helpful.  

The students’ lawyer told the Calgary Herald that before this case the general impression among the legal community was that the Charter did not apply to universities, even though courts have never said that in such absolute terms.  That’s true – it just so happens that all the decisions involving charter claims against universities have been rejected or have never properly addressed the issue.  The decision turned some heads and serves as a landmark case but at the end of the day it simply fit within a neatly set out conceptual window created by the courts, where the right facts finally came along to demonstrate what type of university activities of an autonomous institution will be subject to the Charter.  

Let’s see what the Alberta Court of Appeal has to say. 

Does the Charter apply to universities?

University administrators raised their eyebrows this week to news of the decision of the Court of Queen’s Bench of Alberta in Pridgen v. University of Calgary (CanLII), specifically the declaration of the Honourable Madam Justice Strekaf that the university is “not a Charter-free zone”. 

The case (which was previously discussed in this post) involves separate statements by University of Calgary students Steven and Keith Pridgen – identical twins – on a facebook wall entitled “I NO Longer Fear Hell, I Took a Course with Aruna Mitra”.   One comment mused about whether Professor Mitra “got lazy and gave everybody a 65″ while the other celebrated her departure and alleged she lied about being a “long-term professor”.  Professor Mitra complained.  The Interim Dean of the Faculty of Communication and Culture determined that the ten students who contributed to the wall, including the Pridgens,  had committed non-academic misconduct and should be sanctioned.  Keith Pridgen was advised that he was placed on probation for two years with certain other conditions and Steven Pridgen was mainly required that he write an unqualified letter of apology to Professor Mitra but no probation was applied.  Letters from the Interim Dean maintain that the statements have caused “unwarranted professional and personal injury” to Professor Mitra and satisfy the criteria for non-academic misconduct.  (The Statement of Principles of Conduct in the University Calendar defines non-academic misconduct to include “conduct which causes injury to a person”.)

The twins appealed the sanctions to the General Faculties Council’s Review Committee, where they were unsuccessful in quashing the Interim Dean’s decision and instead were given a six- and four-month probation respectively.  They went a step further to the university’s Board of Governors, but they were rebuffed.

The first issue the court considered was whether the Charter applied to the disciplinary actions taken by the university.   The Pridgens alleged that the university’s position infringed their rights under the Charter of freedom of expression and association.  In contrast, the university argued that the Charter only applies to government institutions, which the university is not, despite being a creature of statute that performs a public service.

The essential source for determining whether the Charter applies to an entity is the Charter itself at section 32(1):

This Charter applies:

(a)  to the Parliament and government of Canada in respect of all matters within the authority of Parliament…; and

(b)  to the legislature and government of each province in respect of all matters within the authority of the legislature of each province [which includes education].

But does the term “legislature and government” include universities?  There have been several significant decisions of the Supreme Court of Canada since the advent of the Charter that  interpret this provision.  The initial guiding light came in RWDSU v. Dolphin Delivery Ltd. (CanLII), where the issue was whether secondary picketing in a labour dispute is protected as freedom of expression under the Charter.  The most relevant point of the decision is that the court held that the Charter applies to “government action” and not to “private activity”.  More importantly, the court implied that the Charter might apply to “creatures of Parliament and the Legislatures”.

Several years later, the Supreme Court of Canada released a series of decisions dealing with claims of Charter infringements by universities and hospitals.  In McKinney v. University of Guelph (CanLII), the issue was whether mandatory retirement policies of several universities infringed the right to equality under the Charter.  The claimants asserted that the Charter applied because the universities were creatures of statute intended to carry out a public service of providing education – i.e. they are essentially degree-granting companies incorporated by acts of provincial legislatures to complete a government objective.  The court held that the Charter did not apply because the universities were not part of the government apparatus; they are legally autonomous and are not organs of government despite their dependence of government funds.  The fact that the universities were incorporated by statute or carry out a government objective does not make them part of government.  (A similar decision was rendered that year, but the court found there that the Charter in fact applied because of greater control by government in university affairs.)

Significantly, the Honourable Mr. Justice La Forest ruled that the origins or purpose of an entity are not alone sufficient to render it subject to the Charter, but rather courts should look to the degree of involvement or influence of government in a given activity that gives rise to a Charter claim to determine whether the Charter applies.  Nonetheless, he did not shut the door to the Charter possibly applying to universities, but left in place a “control test”.  The Honourable Madam Justice L’Heureux-Dube concluded in a separate decision that while certain functions of universities could be subject to the Charter, the activity of hiring and firing employees is not.

The court’s view was clarified in Eldridge v. British Columbia (CanLII), where deaf claimants argued that the failure of the province to provide sign language interpreters as an insured benefit under the Medical Services Plan violated the right to equality under the Charter.   In defining the scope of the Charter’s application, the court (in a unanimous decision) approached the issue from the perspective that legislatures cannot escape their constitutional responsibilities under the Charter by delegating the implementation of their policies to otherwise private entities.  As a result, for the Charter to apply either the private entity in its entirety must be considered to be “government” (i.e. based on the degree of governmental control exercised over it as an organization, it is clearly an organ of government) or the particular activity at issue must be considered to be “government” (i.e. the implementation of a certain government program) even though other activities of the private entity (e.g. hiring and firing employees) are not.

In McKinney, the court declared that the statutes of the universities did not show them to be organs of government, given the degree of autonomy they were granted to manage their affairs without government intervention.  In Pridgen, the court reached the same conclusion about the University of Calgary, but noted that it is implementing a specific government policy:

The University is tasked with implementing a specific government policy for the provision of accessible post secondary education to the public in Alberta… The structure of the PSL Act [i.e. the statute governing the University of Calgary] reveals that in providing post‑secondary education, universities in Alberta carry out a specific government objective. Universities may be autonomous in their day‑to‑day operations… however, they act as the agent for the government in facilitating access to those post‑secondary education services contemplated in the PSL Act

While the hiring and firing of employees by a university is non‑governmental in nature as seen in McKinney, the disciplining of students and the placement of restrictions on a student’s ability to exercise his or her freedom of expression in the context of pursuing an education at a public post‑secondary institution is altogether different. In order to successfully attend the University, students are compelled to adhere to its rules and policies. The regulation of freedom of expression as a condition of attendance cannot be properly classified as day‑to‑day operations.

I am satisfied that the University is not a Charter free zone. The Charter does apply in respect of the disciplinary proceedings taken by the University against the Applicants pursuant to the PSL Act. As in Eldridge, the source of the alleged Charter violation is the conduct of the University as opposed to the legislation itself. While the University is free to construct policies dealing with student behavior which may ultimately impact access to the post-secondary system, the manner in which those policies are interpreted and applied must not offend the rights provided under the Charter.

After concluding that the Charter applied, the court continued to address the content of the students’ expressions:

I do not regard this particular kind of expression as being of little value. Students should not be prevented from expressing critical opinions regarding the subject matter or quality of the teaching they are receiving. As an educational institution, the University should expect and encourage frank and critical discussion regarding the teaching ability of professors amongst students, even in instances where the comments exchanged are unfavourable. While certain of the comments made about Professor Mitra were not particularly gracious and might have reflected a lack of maturity, the Facebook Wall does have utility as a forum of discussion. The commentary may assist future students in course selection as well as provide feedback to existing students and perhaps reassurance that one is not alone in finding that they are having difficulty appreciating instruction in a particular course. If Professor Mitra was concerned that she was being defamed, then she could have brought a civil action.

Although this decision has surprised many who presumed that the Charter does not apply to university decisions – period – Strekaf J.’s take on certain university activities being subject to the Charter, but others not, has been raised before.  

Pro-life students arrested at Carleton

The Ottawa Citizen reported earlier this week that five pro-life student activists were arrested at Carleton University for staging a protest that featured graphic images of bloody fetuses and comparisons to historical genocides in a certain common area of campus.  The students had requested permission from the university two months prior to use the space for the protest, but that request was denied and the university instead offered a less prominent location.  The protest and arrests are captured in this video (youtube).

The abortion debate has returned to the center stage on Canadian campuses over the past couple of years, with anti-abortion activists making headlines and attracting responses from both university administrators and student union representatives.  See here for a discussion of recent events on BC campuses.

This particular incident, as represented in the youtube video, involves a well-spoken student leader and gives the university a black eye because of the legal issues raised by the university’s decision to summon police to carry out the arrests:

  • Did the students trespass?  Trespass is a broad legal term that, at least under the Trespass Act (BC) (BCLaws), includes a person engaging in an activity on certain property after the occupier of that property has told them that the activity is prohibited.  Presumably, the students paid their tuition – though one of the five was not a student at Carleton – and in return the university gives them the right (called a “licence”) to use the university’s property in certain ways (e.g. to access classrooms) under certain conditions (e.g. so long as they act within some defined series of rules applicable to student conduct).  In this case, the university seems to be saying that situating the protest in that space was a prohibited activity and so, technically, the students may have trespassed.
  • Is university property public or private?  This issue always sounds to me more like a political than legal argument for the following reason: just because property may be owned by a public body does not mean individuals have the right (or should have the right) to use that property for political protest at any time and of any form.  Freedom of speech is important, but so is regulating traffic, maintaining law and order, respecting local businessowners, etc.  The centre of the intersection at Burrard and Robson may be owned by the City of Vancouver, but that does not entitle five Vancouver residents to stand there with placards and a soapbox after failing to get a permit to do so.
  • Does the public have the right to be exposed to graphic images only with prior consent?  This is an interesting issue because it touches on the need to balance competing rights and values – e.g. the right to political protest vs. the right to go about your business without being forced to stare at pictures you consider offensive.

These issues have long histories related to political protest, particularly on campuses.  However, the most salient point appears to me to be whether the university is exercising its powers to discriminate against a group on account of having certain political views.  In many respects, a code of student rights and responsibilities acts like a student’s contract with a university, and if the university is breaking that contract a student should be able to point that out.

The tactical issues for the university and perhaps the police are another matter as well.  For example, lawful or not, did the students need to be handcuffed?  My guess is they could have been ushered away without resorting to cuffs, but there may be some criminal law requirement I am unaware of.  University administrators, quite reasonably, have an interest in maintaining order on campus – there would be little benefit if political groups could simply protest where, when and how they wanted to.  But universities have been notoriously unprepared to deal with these issues, especially where the media is involved (e.g. despite the video’s prominence of youtube, I don’t think Carleton even has a press release about the event up on its website). 

As a first step, universities and student groups engaged in these issue should have sufficient legal advice to persuasively explain their positions. 

The wrong way to expel a student

One of the most important lessons in life is that how you do something can be just as, if not more, important than what you do.  Using an illegitimate process, particularly if you are in a position of power, can negate any benefits of a decision, no matter how wise or noble that decision may be. 

This lesson was brought home to a school principal earlier this month across the provincial border in the decision of the Honourable Mr. Justice Macleod of the Court of Queen’s Bench in J.O. v. Strathcona-Tweedsmuir School (CanLII).  The facts of the case are nearly as interesting as the reasoning behind the outcome.  J. was a student at a well-known independent school in the Calgary area with an excellent reputation (the judge characterized it as a “high-end private school”).  She was a reasonably good student but was struggling with her studies in grade 11.  Then her real troubles began. 

The school’s annual Christmas formal dance for students in grades 10, 11 and 12 was planned for December 11, 2006 at the Calgary Golf and Country Club.  J. and her 15 year-old boyfriend P. attended a pre-dance party at a student’s home.  The parents of the hosting student arranged for a limousine to drive the students from the party to the dance, during which time J. had some drinks.  Shortly after arriving at the dance, J. felt nauseous and thought she was going to be sick.  She asked P. to help her and wanted him to join her in the ladies washroom, where students kept coming in and out.  During that time, a woman at the club noticed that the door to the ladies washroom was closed.  When we opened it, she claimed she saw J. and P. doing something inappropriate.  Another member of their group – Mrs. Lougheed (a very prominent member of the community) – went straight to one of the teacher chaperones and told him a young couple was in the washroom “going at it”.

The next morning the school principal called Mrs. Lougheed, who described to the principal what she had seen in the washroom.  The clear implication of her description was that the two students were having sex.  The principal apologized for the incident and assured her he would severely discipline the students involved.  The next day he spoke with J.  He explained what had been reported about her.  She asserted they her and P. definitely not having sex.  The principal told her this was a serious issue; she should not to come school the next day and there would be a meeting with her parents.  The principal never gave J. the name of the witness he spoke to.

The principal was clearly concerned about the reputation of the school and concluded that J. simply confirmed her and P. were engaged in inappropriate behavior, whether or not they were actually having sex.  Two students approached the school guidance counsellor to explain what they had seen in support of J.’s version of events, but the principal (who was told of this testimony) never followed up with the students.  Instead, the principal met with two other senior administrators within the school and concluded that J. should be expelled, but J.’s parents should be given the option of having her withdraw.  The decision to expel J. was presented to J.’s parents as a done deal the next day at their meeting.  J.’s parents were furious and the meeting unravelled.  J. never returned to the school but no formal expulsion was issued.

The court in this case was confronted with the following central issue: whether the school, in investigating and responding to J.’s conduct, had a duty of fairness and, if so, whether it fulfilled that duty.  Fundamentally, this is about abiding by a contract.  J.’s parents had a contract with the school for J. to receive instruction.  An implied term of that contract was to treat J. fairly and thus the court quickly confirmed the school owed J. a duty of fairness but focused primarily on what standard was imposed on the school by that duty. 

The court maintained that the content of the duty of fairness depends on the circumstances of each case.  Relevant factors include:

  1. the nature of the decision being made and the process followed in making it;
  2. the importance of the decision to the individual(s) affected; and
  3. the legitimate expectations of the person challenging the decision.

Several other factors were cited by the court, but even that list was determined to be non-exhaustive.  Essentially, the underlying value is that the individual affected should have the opportunity to present their case fully and fairly, and decisions affecting their rights should be made using a fair, impartial and open process, given the context of the decision.

The court acknowledged that schools are not courtrooms and these sorts of decisions should not invite the same standard of due process.  The court referred to an excerpt from Schools and Students: Legal Aspects of Administration (Toronto: Carswell, 1998) by W.H. Giles, which was quoted in Gianfrancesco v. Junior Academy Inc.:

It is evident to any intelligent teacher or principal that the strict application of Re Gault would be perversion. Of course, natural justice must apply in the schools, but to turn them into judicial circuses would encourage disrespect for both the schools and the courts… In fact, the schools would have to close, and close permanently, for there would be no time to teach and no point in teaching, since discipline delayed is discipline destroyed. In fact, federal courts often minimize the adherence to procedural rights of people charged with misconduct.

In any event, the court utimately sided with J. and found that the school failed to satisfy its duty of fairness.  There were several factors that weighed heavily on the court’s decision: 

  1. The school had violated section 21 of the Private School Regulation (CanLII), requiring the school to have written rules dealing with suspension or expulsion of students.  As well, the regulation specifically required the school to adhere to principles of fundamental justice.
  2. J.’s education was clearly of considerable importance to her and her parents, and they had a legitimate expectation that J.’s conduct at the dance would be dealt with seriously.
  3. No one at the school took the time to consider J.’s side of the story.  She was not given notice of the case against her and had no opportunity to respond to it.
  4. The person that told the principal J. and P. were “going at it” did not testify at trial and nothing the school’s other witnesses said contradicted J.’s assertion that her and P. were definitely not having sex.

Macleod J. issued a strong condemnation of the school’s decision, saying it smacked of “a rush to judgment”, was a “miscarriage of justice” and “no fair-minded person who had heard the evidence I heard could have concluded that expulsion was fair”.  The school’s administrators appeared to be motivated to protect the school’s reputation and sacrificed J. in the process:

[Schools] have considerable latitude in disciplining students. However, expulsion is rightly characterized as the ultimate punishment a school can mete out and both students and parents reasonably may expect that such a drastic punishment will not be imposed arbitrarily. Even serious infractions of [the school’s] rules did not necessarily give rise to expulsion. Another student who was caught drinking at the same dance was stripped of his prefecture and placed on probation, but was not expelled. Had the school made a more thorough investigation and taken into consideration the accounts of all witnesses, it is extremely unlikely J. would have been expelled… [The] school may have the right to be wrong, but it must be fair.

Expulsion appeals have become increasingly in common in other Canadian jurisdictions, and legislatures have moved to direct those appeals to administrative bodies to avoid a direct recourse of parents and students to the regular court system.  For example, with respect to public schools, the student discipline provisions of the Ontario Education Act and regulations were amended in 2008 to include additional factors a school board must consider when enforcing an expulsion, appeals of which will be heard by the Child and Family Services Review Board (CFSRB).  These amendments provide school boards with the authority to consider the student’s conduct outside of school.  In J.G. v. Kawartha Pine Ridge District School Board (CanLII), the CFSRB quashed a school board’s decision to expel a student for smoking marijuana off school premises and sharing it with his friends.  The school board held a hearing on the matter and accepted the recommendation of the school principal that the student be expelled.  The student was informed of the decision without any reasons for the decision.  The CFSRB’s ruling against the school board was upheld by the Ontario Divisional Court.

In British Columbia, a school board’s power to expel a student is set out in section 85(3) (BCLaws) of the School Act:

Despite any other provision of this Act, a board may refuse to offer an educational program to a student 16 years of age or older if that student

(a) has refused to comply with the code of conduct, other rules and policies referred to in section 6, or

(b) has failed to apply himself or herself to his or her studies.


University of Calgary facebook reprimand reaches judicial review

The latest facebook-got-your-tongue litigation making  national headlines (Vancouver Sun) popped up this week from the University of Calgary, where twins – both students – were placed on probation two years ago for stinging comments they made in November 2007 about a professor on a facebook page entitled “I no longer fear Hell, I took a course with [the Professor’s name]“.  The comments on the site include suggestions that the professor “got lazy and gave everybody a 65″. 

The professor complained to the interim dean that this was an assault on the professor’s reputation, and the interim dean determined that the twins had used facebook to commit non-academic misconduct and handed down a penalty accordingly.  The Board of Governors declined to hear an appeal of the decision and grant them a formal hearing.  The twins are now seeking judicial review before the Court of Queen’s Bench in Alberta.  Arguments before the court began this past Friday and were adjourned to another date.

The university maintains that the twins made unsubstantiated allegations that violated the school’s student code of conduct.  No formal hearing was required given the nature of the penalty handed down.  In contrast, the twins claim they wrote nothing wrong and the university’s actions smack of procedural unfairness.  The university is trying to place a muzzle on legitimate criticism of professors.

This is a sad picture for a number of reasons:

  1. The university appears to have done a miserable job of explaining its position in the court of public opinion.  While the demands of journalists to write short, punchy news pieces on a tight deadline means that much of the essential facts may get chewed up in the process, there does not seem to be any clear response by the university to several basic questions.  By what authority did the school punish the twins for comments they made online in a non-academic forum?  How broad is this power and how else has it been used?  Does the university consider the comments to be defamation or a milder form of wrongdoing that nonetheless violated the student code?  What sort of online criticism of professors is permitted under the code?  You cannot control how much of your side of the story the media decides to tell, but you better use any resources you have to stream it into the marketplace.  The U of C website showed no recent press release asserting its view of the matter.
  2. The twins are in the uneasy position of having to justify publicly why they made seemingly juvenile comments that have likely impacted the professor’s livelihood in a meaningful way.  Many students use facebook the way baby boomers, in their student days, used – well – talking.  Students have traditionally made fun of unpopular professors and criticized them unfairly, but usually only in a somewhat private setting – students nowadays would never dream of splashing those comments across the national media, which is exactly what has happened in this case.  As much as the university has to justify its response to the comments, the twins have to defend the comments as legitimate.

The best advice I have ever heard about making online commentary is never post anything that you would not want to see appear after your name on the front page of a major newspaper.  Facebook has entered the courtroom in many ways, particularly to the detriment of student users.  For example, in MacIntyre v. Pitt Meadows Secondary School (CanLII), a recent decision of the Supreme Court of British Columbia involving a student’s claim for compensation for an injury suffered in shop class, the court relied heavily on photos posted on facebook as evidence showing the student shortly after the accident being physically and socially active.

Students have the freedom to criticize their professors in public, but it has never been easier for those comments to cross the line into something more troublesome and they must be aware not only of the rules surrounding a tort like defamation but also the rules of the school they attend that form part of their educational contract.  School administrators must establish policies governing this new venue for commentary.  Although it is difficult to glean from the media reports enough information to draw concrete conclusions in this case, universities – in Alberta, British Columbia and the rest of Canada – are looking to a court decision arising from the University of Calgary’s travails that will provide further guidance in setting the appropriate course.